If you haven’t read our Introduction to Hearsay article, please give it a read. The introduction will give you the basic explanation of hearsay and the two basic exceptions you can use to combat a hearsay objection.

As a refresher, the two exceptions are that hearsay can be used to: show an effect on the listener or the subsequent actions of the person who heard the statement. These exceptions can only be used when the statement is NOT being used to prove the truth of the statement (the matter asserted).

However, there are many other rules and exceptions when it comes to Hearsay. These sections will go over each rule and exception.

Hold up. What is a “Declarant?”

This article is extremely complicated. Before you start reading, let’s define what a “Declarant” is before you ask questions later. A declarant is a person who says a statement. For example, if John says, “I am going to drive my blue car” then this statement’s declarant is John because John said the statement.

What are “Statements That Are Not Hearsay”?

Rule 801, otherwise known as, Statements That Are Not Hearsay, are exceptions for the use of hearsay. In this section, there is a particularly important rule known as 801(d)(2), known as Admission by a Party Opponent Rule.

• In a civil case, it allows the plaintiff to introduce what the defendant and plaintiff said.
• In a criminal case, it always allows the prosecution to introduce what the defendant said.

This rule may sound unfair but it does make practical sense. It allows the plaintiff or prosecution to introduce statements the defendant gave. As such, the defendant can always get on the witness stand to correct any misstatements. The section rationale is that people shouldn’t be able to make statements as though they were true and prevent their statement from being discussed.

Another part of 801(d)(2) are exceptions and rules if the two parties in the case are companies. You may ask, why do we need rules and exceptions for companies? It’s because companies are entities made up of a lot of people and this section defines who can speak for these companies as the party opponent.

• 801(d)(2)(b) – This exception allows documents signed by the plaintiff or prosecution to be admitted by the defendant.
• 801(d)(2)(c) – This allows authorized people or persons to speak on behalf of the company as the party opponent.
• 801(d)(2)(d) – This rule allows employees to testify as party opponents. However, it must be within the scope of the case.

The last important part of 801(d)(2) allows anything that a party opponent says or write to be admitted as evidence. For example, if you were to admit an e-mail message as evidence written by the party opponent and you received a Hearsay objection, this rule will back you up. There is a chance people will confuse this with another exception called, statement against interest, which this article covers. However, that is a completely different exception.

Exceptions to the Rule Against Hearsay

The rest of the rules and exceptions are based around Rule 803 and Rule 804. There are twenty exceptions listed in Rule 803 and six exceptions listed in Rule 804. There are two main distinctions about these rules which makes them very important.

• Rule 803 – These exceptions are available regardless of who made the statement.
• Rule 804 – These exceptions can only be used when the declarant is “unavailable.”

If you’re wondering what “declarant is unavailable” means, we must go over a few things. A declarant is a person who makes the statement. If that person is “unavailable,” it most likely means that person is dead. There are other reasons why a person might be unavailable listed in the Federal Rules of Evidence. However, in Mock Trial, it most likely means that person is dead. If the declarant is alive, Rule 804 will not work. Though, there are exceptions in Rule 803 that make the statement admissible.

Rule 803: Declarant Immaterial Exceptions

This section will only go over the most important and common use cases for Rule 803. You may need to read the entire section of Rule 803 as there are over 20 exceptions listed for this rule. We can spend days going over each rule which is why we will only go after the most important.

803(1) – Present Sense Impression 

These are statements that are made while or after witnessing something occur. These statements are allowed as there is some sense of reliability in these statements since they occur while or right after something happens. For example, a 911 call can be admitted using Present Sense Impression since most 911 calls are often made while or after something happens.

803(2) – Excited Utterance

These are statements made due to a startling event that occurred. The issue is that the witness who made this statement must have been under stress due to the startling event occurring. These statements are generally allowed because a witness is less likely to make up a lie while they are in a state of shock due to the incident. This rule is somewhat similar to 803(1) except there is less of a time constraint.

803(3) – Then Existing Mental State/Physical Condition 

These are statements made by the person who is under a mental state (intent or motive) or physical condition (pain). However, these statements must be forward-looking. In other words, the event must have occurred for it to be admissible under this exception. For example, if the declarant says, “I’m going to rob the bank on Main Street,” and the bank on Main Street is robbed, the statement tends to prove that the bank was robbed on Main Street.

803(4) – Statements Made in Order to Obtain Treatment

These are statements made to a doctor. Statements made by the patient are admissible under this rule. However, statements made by the doctor are not admissible. These statements are allowed because the patient has a special interest in receiving the correct treatment for their condition. Another important note, make sure the opponent using this rule is not using it for an explicit purpose. For example, if the patient said, “I was shot in the leg. My friend James did it.” The first part is allowed since the doctor needs that information to treat the patient. However, the second part is not allowed because the doctor doesn’t need to know who did it.

803(6) – Business Records

Records of regularly conducted business activities are admissible using this exception. However, records are not admissible if they were created due to anticipation of a lawsuit. For example, accounting records are allowed because they are accurate representations of how the company spent money. However, if accounting records were misrepresented due to anticipation of some type of litigation, these records are not allowed. These records are allowed because businesses have special interest in keeping accurate and up-to-date records. Another note, if you use this exception, you may need to lay some foundation on the origins of the document.

803(8) – Public Records 

Records created by the government or a government agency under a legal presence are admissible using this exception.  This exception is only allowed to be used in civil cases. These records are admissible because the government has no interest in the outcome of a civil trial between two private entities and we can trust that the government’s documents are accurate and have no special interest. However, these documents are not allowed in criminal cases because the government may have special interest in prosecuting the individual.

803(18) – Learned Treatises

This exception allows both parties in a civil and criminal case to admit published documents that an expert witness may use. These documents are generally allowed because they are published by individuals who are peer reviewed and reliable. However, these documents are not fully admitted into evidence. The document is not allowed to be published to the jury because it is technical and complicated for jury members to understand them. They are only allowed to be discussed by expert witnesses.

Rule 804: Declarant Unavailable Exceptions

In order for Rule 804 to apply, the declarant must be unavailable and there must be an available exception for you to use this rule. If we look at the Federal Rules of Evidence, there are five conditions that make a declarant unavailable. However, the only applicable reason why a declarant may be unavailable in Mock Trial is because they are dead. Once we’ve established that the declarant is unavailable, we may then use the exceptions in 804(b). In this article, we will go over three of the six exceptions that are worth mentioning.

804(b)(1) – Former Testimony

This exception allows two parties in litigation to preserve the testimony of a declarant who is elderly, sick, or dying. For example, if the declarant gives their testimony in a deposition or in court and they become unavailable, their testimony becomes admissible under this exception. However, in order to use this exception, the declarant must have been under oath and must have had a cross examination. Therefore, police statements and witness affidavits are not admissible since they either are not under oath or were not subject to a cross examination.

804(b)(2) – Statement Under Belief of Impending Death

If a statement was made by a declarant before their death, their statement becomes admissible under this exception. These statements are allowed because we believe that a person on their deathbed or about to die will not die with a lie which makes their statements reliable in the eyes of the court. However, there must be evidence that the declarant knew they were about to die. Finally, this exception only applies to civil cases and criminal cases that involve homicide.

804(b)(3) – Statement Against Interest

Statements that are not the penal (criminal), pecuniary (monetary), or proprietary (property) interest of the declarant, such that the declarant wouldn’t say these statements unless they were true, are admissible under this rule. For example, this rule allows the defendant on trial for a crime to introduce a statement of another witness or person admitting to the crime. However, this exception can only be used when the declarant is unavailable, as well as, special circumstances when a statement like this is offered. The reason this exception exists is because people will not admit things that will get them in trouble unless it was actually true.